The authors are advocates of Karanjawala & Co. practicing before the Hon'ble Supreme Court of India and the Hon'ble High Court of Delhi. Mr. Debmalya Banerjee is a Partner at Karanjawala & Co. and Mr. Aman Singh is a Senior Associate.

The only saving grace, it seems is that the Lady of Justice is blind. If she could see the slow but steady decline of the our moral standards as a society surely her head would hang in shame. The Fourth Estate has been regarded as one of the sentinels guarding the existence of the society. However, it is troublesome to observe that from what has been exhibited recently, it has fallen far from grace. The cacophony surrounding the death of a popular Bollywood actor has revealed the dark underbelly of the media and its nefarious appetites. The entire episode has played out in the open in lurid detail for all to see. The media slowly became victim to the same mob mentality that it initially generated in the public. Entertainment was incentivised and an entire nation fell prey to the stupor of a real life thriller unfolding before their eyes.

We must not forget that as responsible citizens we still have a duty to make an attempt to understand phrases such as 'media trial', 'freedom of speech', 'right to a fair trial' etc. It is in context that we must understand the role of Supreme Court of India (hereinafter referred to as "the Supreme Court") in shining a guiding light on the various aspects involved. In the matter of Manu Sharma v. State (NCT of Delhi); (2010) 6 SCC 1 (hereinafter referred to as "the Manu Sharma matter"), the Supreme Court made a reference to Nature of Judicial Process, the work of Benjamin N. Cordozo, a former Justice and one of the erstwhile pillars of the American Supreme Court as also the matters of P.C. Sen, In re; AIR 1970 SC 1821 and Reliance Petrochemicals Ltd. v. Indian Express Newspapers, Bombay (P) Ltd.; (1988) 4 SCC 592. This was done with a view to highlight that judges are subconsciously influenced by several forces.

In an eventuality where a high profile investigation is going on amidst a media frenzy, it is only logical to conclude that a potential Judge or Investigating Officer in the matter is also following the case. Judges and Investigating Officers are a part of the same society that they stand in judgment or scrutiny over and are susceptible to the same human fallibilities as the common man. Needless to say that in principle it is the ability of a Judge as well as an Investigating Officer to be impartial and uninfluenced which is a pre-requisite. Therefore, a widely publicised "media trial" where potential theories are explored without having to pass through the scrutiny of established judicial principles and laws of evidence, is a substantial threat to the concept of a fair trial by the State.

The Supreme Court in the Manu Sharma matter further outlined the dangers of a "media trial". It observed that there existed a serious risk of prejudice being caused if the media exercised unrestricted and unregulated freedom in so far as carrying out parallel trial procedures without being held up to any standard. Furthermore, carrying out a relentless scrutiny of any accused without any definitive exposition by a competent court of law goes against the rights of the accused as well. One of the basic tenets of criminal jurisprudence is presumption of innocence ("ei incumbit probatio qui dicit non qui negat" - the burden of proof is on the one who declares, not on one who denies), however, with the current state of affairs this no longer seems to be the case.

On the aspect of presumption of innocence, the Supreme Court has also referred to the judgment in the matter of Anukul Chandra Pradhan v. Union of India; (1996) 6 SCC 354 to emphasise on the fact that the presumption is legal in nature. This should not be destroyed at the very threshold through the process of media trial especially when an investigation is pending in the matter. Such a subversion of the criminal justice system would be in derogation of the rule of law and would also impinge upon the protection granted to an accused under Article 21 of the Constitution. It was also observed that protection of such presumption is essential for maintenance of the dignity of the courts and is one of the cardinal principles of the rule of law in a free democratic country. Reporting or criticism in sub-judice matters must be subjected to checks and balances so as not to interfere with the administration of justice.

The Supreme Court in the Manu Sharma matter also gave credence to the significance of print and electronic media. However, it also cautioned powers that be as it were, to ensure that trial by media should not hamper a fair investigation and neither should it prejudice the right of defence of the accused in any manner whatsoever. If the same was allowed to happen, it would be tantamount to travesty of justice. The role of media both historically and more so in the present day is of paramount significance as reiterated by the Supreme Court. However, with a digital explosion across the world and access to electronic devices becoming easier catering to ever hungry viewers for information is a herculean task. Content creation is a challenge which has struck a serious blow to journalistic integrity. It is for the media to self-diagnose this malaise and take remedial measures. Any fetters on the media is a highly undesirable state of affairs and a red flag in the functioning of vibrant democracy such as India.

The issue at hand has also has to be necessarily seen through the lens of Article 19(1)(a) i.e. the freedom of speech and expression protected by the Constitution of India as a fundamental right. This right is an essential tool for the media in the sincere disposal of it duties therefore, it should only be interfered with in exceptional circumstances and with extreme caution. It would be in the best interest of all stakeholders that the media does not precipitate a situation where such a scenario would have to be considered by either the courts of law or through a legislative mandate. It is also pertinent to mention herein that no rights including fundamental rights are absolute and reasonable restrictions can be imposed in discharge thereof. Such is also the case with the freedom of speech and expression and no entity, whether an individual or otherwise, is allowed a free and consequence free reign in such matters.

Since freedom of speech and expression is an aspect which goes to the root of understanding what a media trial is, it is only appropriate that it is understood with a little more clarity. In the matter of Shreya Singhal v. Union of India; (2015) 5 SCC 1, the Supreme Court de-constructed the essential elements of right to free speech and expression. Discussion, advocacy and incitement are fundamental in understanding this concept. Discussion or even advocacy of a cause, however unpopular, should be allowed but when such discussion or advocacy leads to incitement then it should be restrained by law. Therefore, to transpose this understanding on the issue at hand, it can be stated that when discussion or advocacy in an investigation is limited to ensuring that a free, fair and transparent investigation and trial occurs, it is acceptable. When such discussion or advocacy leads to incitement to conduct a parallel unsupervised and unregulated media trial then it is a fit case for being sanctioned under law.

Similar views were expressed by the Supreme Court in the matters of R.K. Anand v. Delhi High Court; (2009) 8 SCC 106 as well as M.P. Lohia v. State of W.B.; (2005) 2 SCC 686. The Supreme Court reiterated that the media and the judiciary are institutions inhabiting separate spheres and their functions do not overlap. One cannot and must not use the other for discharge of its functions. It was observed that media should only engage in acts of journalism and not act as a special agency for the court. The impermissibility of freedom of speech and expression amounting to interference with the administration of justice due to the prejudicial nature of certain media coverage was also highlighted.

In the matter of State of Maharashtra v. Rajendra Jawanmal Gandhi; (1997) 8 SCC 386 the Supreme Court while considering the issue of sentencing observed that a trial by press, electronic media or public agitation is the very antithesis of the rule of law. This may very well lead to miscarriage of justice and therefore, a Judge should guard himself against any such pressure and should strictly be guided by the rules of law. However, in the R.K. Anand matter (supra), it was also held that broadcasting of sting program in that case did not amount to media trial. It was observed that as there was nothing in the program to suggest the guilt or innocence of the accused the media had in no way overreached. Therefore, what emerges is that one of the key factor in determining a media trial is the suggestion of guilt or otherwise.

In the matter of Sahara India Real Estate Corpn. Ltd. v. SEBI; (2012) 10 SCC 603 the Supreme Court discussed postponement orders i.e. judicial orders restraining the media on reporting regarding matters. This is done with the motive of ensuring proper administration of justice and fairness of trial. Another important aspect highlighted was that even in matters where fair and accurate reporting takes place there is also a real and substantial risk of serious prejudice to connected trials. Also postponement orders are also a means to avoid contempt. This is for the protection of media lest it commit contempt in its zeal to pursue a story. These orders are also a useful tool to balance conflicting public interests in terms of both safeguarding the sanctity of the judicial process and the right of freedom of speech and expression being exercised by the media. The Supreme Court had another word of caution in the matter of Satishbhushan Bariyar v. State of Maharashtra; (2009) 6 SCC 498 wherein it was observed while referring to the matters of Khatri(II) v. State of Bihar; (1981) 1 SCC 627 and Sanjay Dutt v. State (II); (1994) 5 SCC 410 that if media trial is a possibility, sentencing by media cannot be ruled out.

Upon a collective assessment of the judgments of the Supreme Court of India on the aspect of media trial it is clear that the risk that they pose is real. The State and the Fourth Estate have a responsibility to defer to each other's respective domains. While the State should be circumspect regarding any censorship or penal action against the media, at the same time the media should refrain from any unwarranted transgressions. Media trials entail the possibility of subverting administration of justice right from the stage of investigation, trial and finally sentencing. In today's age of click-bait journalism aimed at satisfying the increasingly short attention span of viewers there exists a subtle by clearly defined line which should not be crossed. Factual narration in itself is safe, however done with a pre-disposed view towards guilt or innocence without any official indictment is clear case of overreach by the media.

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